JUDGMENT :

BIBHAS RANJAN DE, J.

1. The instant revision application under Article 227 of the Constitution of India has been filed assailing order no. 11 dated 07.05.2024 passed by Ld. Additional District Judge, 1^st Court, Siliguri, wherein Ld. Judge refused the prayer for amendment of written objection under Order 6 Rule 17 of Civil Procedure Code (for short CPC) on the ground of introduction of new cause of action along with new set of facts with regard to title of the bequeathed property.

2. Background of the dispute is that the respondent no. 1 filed an application under Section 278 of the Indian succession Act, 1925 (for short Act, 1925) before Ld. District Delegate (Civil Judge, Senior Division) at Siliguri which was registered as Misc. Judicial case no. 22 of 2021 with a prayer for granting letters of administration of the last will of one Kishan Prasad Kanoo, since deceased, dated 17.08.2005.

3. After receiving notice, the petitioner of this revision application entered appearance and filed written objection against the application under Section 278 of the Act, 1925. Accordingly, Ld. District Delegate transferred the case record to the Court of Ld. District Judge, Darjeeling, where the same was treated as contested suit and renumbered as O.C. (Probate) Suit No. 04 of 2022.

4. Ld. District Judge, Darjeeling, in tern, transferred the same to the Court of Ld. Additional District Judge, 1^st Court at Siliguri for disposal. Thereafter, Petitioner of this case filed one application under Order 6 Rule 17 CPC for amendment of written objection on 09.06.2022 which was rejected by the Ld. Transferee Judge on 07.05.2024 which has been impugned in this revision application.

5. Ld. Counsel, Mr. Sandip Mandal, appearing on behalf of the petitioner has submitted that the nature of proposed amendment did not change the nature and character of the suit rather it was an elaborate description of the title of the testator.

6. In support of his contention, Mr. Mandal, relied on a case of Mohinder Kumar Mehra vs. Roop Rani Mehra and others,  (2018) 2 SCC 132.

7. Mr. Mondal has further relied on Smt. Radhika Devi & Anr. vs. Ajay Kumar Sharma & Ors.  2010 SCC Online Pat 1487 (Single Bench) and Most Kewala Devi vs. Krishna Devi,  2015 SCC OnLine Pat 10051 (Single Bench) and has tried to make this Court understand that the petitioner/defendant can amend the written objection incorporating the cloud over the title of the testator.

8. On the contrary, Ld. Counsel, Mr. Subham Ghosh, appearing on behalf of the respondents has contended that the title of the testator cannot be questioned in a probate suit which will only decide the execution of the will.

9. Mr. Ghosh has further submitted that the proposed amendment detailing the facts over the title of the testator was rightly refused by the Ld. Judge vide the impugned order.

10. In support of his contention, Mr. Ghosh, relied on the following cases:-

 Ramchandra Ganpatrao Hande alias Handege vs. Vithalrao Hande and Others,  2011 AIR (Bomaby) 136 (Division Bench)

 Jacob Cherian vs. Himanshu Kumar Mukherjee and another, 1993 (1) Cal. H.C.N. 21 (Single Bench)

Analysis:-

11. The application under Section 278 of the Act, 1925 was filed with a prayer for letters of administration and after filing of written objection that application was ultimately treated as probate suit being no. 04 of 2022.

12. It is settled proposition of law that under probate or letters of administration proceedings the court is not supposed to call upon to adjudicate the title of the property involved in the will. In Ramchandra Ganpatrao Hande (supra) it was decided in paragraph 14 which runs as follows:-

“14… The ambit of the words “all matters connected therewith” has to be construed in relation to the grant of probate and letters of administration. Such a proceeding does not concern itself with title or even the existence of the property but only determines whether the will was executed by the testator of his own free will. That being the ambi